Every four years like clockwork, it happens: presidential politics becomes the focus of our national attention, seemingly dominating all aspects of our lives. The national conversation becomes one of campaign rhetoric, and anecdotal evidence suggests that it has only gotten more divisive. The conventional wisdom says that the two things one is never supposed to discuss at work are religion and politics, yet the political conversation can’t help but spill into the workplace, with the attendant potential for division and conflict. As an employer trying to foster productivity and keep the peace in the workplace, is there anything you can do? As it turns out, there’s quite a lot.

The National Labor Relations Act protects the rights of employees to connect and address conditions at work, and recent decisions have held that this protection extends to certain work-related conversations on social media.[1] However, it has yet to be determined exactly how far this protection will reach.

On March 18^th, National Labor Relations Board (“NLRB”) General Counsel Richard F. Griffin, Jr., issued a report[1] (“the Report”) concerning employer rules and employee handbooks in light of recent employer rule cases. Most of the violations found in these cases occurred under the first prong of the two-prong the test in Lutheran Heritage Village-Livonia,[2] which looks to whether an employer rule explicitly restricts protected activity under Section 7 of the National Labor Relations Act (“NLRA”). The Report used these cases as a guide to provide clear examples of both illegal rules and their legal counterparts, giving employers a valuable tool in evaluating employee handbooks and workplace rules.

Kentucky employment law generally recognizes that most employment is “at-will” – meaning, employees serve at the pleasure of the employer, and termination of an employee does not require “just cause.” There are several circumstances, however, where laws and other factors prohibit employers from terminating an employee without a well-documented showing of cause. Employers should be aware of the circumstances under which they may not terminate an employee without just cause.

Could a savings clause salvage an otherwise invalid social media policy? Maybe. There is no definitive answer to this question, as savings clauses have been portrayed as both a potential asset for employment handbooks and a non-factor in acting as a loophole for Section 7 of the National Labor Relations Act (NLRA).  Thus, it is important to view savings clauses as one tool in your arsenal and not as a panacea for an overly-broad social media policy.

With the Presidential election just around the corner, employees may be talking about a lot more than gossip around the water cooler. Given the argumentative nature of politics, every employer should be listening for potentially volatile discussions, with a goal of keeping the workplace comfortable and free of hostility this election season.